People v. Lowe
2020 COA 116. No. 16CA1894. Criminal Law—Resisting Arrest—Evidence—Personnel Files—Habitual Criminal—Expert—Prior Escape Conviction—Unit of Prosecution—Merger—Constitutional Law—Double Jeopardy—Sentencing.
July 30, 2020
Defendant escaped from parole supervision, and a warrant for his arrest was issued. Officers Mitchell and Duda located and approached defendant and informed him that he was under arrest. When Duda moved to handcuff defendant, defendant resisted. Mitchell attempted to use a taser on defendant, but defendant obtained the taser during the struggle. The altercation ended when Mitchell shot defendant three times.
At trial, both officers testified that, during the scuffle, they saw defendant holding a knife, and Mitchell testified that he feared defendant was going to stab Duda, who had fallen to the ground during the struggle. Defendant was convicted of two counts of attempted murder in the second degree, two counts of first degree assault of a peace officer, two counts of resisting arrest, two counts of menacing, and prohibited use of a stun gun. At a post-trial hearing, defendant was adjudicated a habitual criminal. The court sentenced defendant to two consecutive 64-year prison terms in Department of Corrections’ custody for the first degree assault convictions. Defendant was sentenced concurrently for his remaining convictions.
On appeal, defendant argued that the trial court erred by refusing to disclose Mitchell’s and Duda’s personnel and internal investigation files. Duda’s and Mitchell’s testimony was the prosecution’s only evidence that defendant threatened the officers with a knife, and the officers’ credibility was central to defendant’s defense. The Court of Appeals reviewed the sealed personnel and internal investigation files and determined that Duda’s files contained no relevant or material information. Accordingly, the trial court did not err in not disclosing Duda’s files. However, Mitchell’s files contained information from professional misconduct and internal investigations related to his credibility. Therefore, the trial court abused its discretion by not disclosing to the defense that information in Mitchell’s files where it was found or alleged that Mitchell misreported information, departed from the truth, or embellished facts.
Defendant next argued that the trial court erred during the habitual criminal hearing by (1) allowing the prosecution’s fingerprint comparison witness to be qualified as an expert, and (2) relying on defendant’s prior escape conviction in adjudicating him a habitual criminal. Here, the witness’s training was sufficient to qualify him as an expert, and he was previously qualified as an expert in fingerprint comparison 13 times. Accordingly, the trial court did not err in allowing the expert testimony. As to the prior escape conviction, the parties agreed that the trial court erred by relying on this conviction in adjudicating defendant a habitual criminal, and the plain language of CRS § 18-1.3-801(5) explicitly forbids the use of a prior escape conviction to support a habitual criminal adjudication.
Defendant next argued that his two resisting arrest convictions should merge because the unit of prosecution for resisting arrest is based on the number of arrests that are resisted, not the number of officers present. He asserted that because he only resisted a single arrest, the two resisting arrest convictions violate his constitutional protection against double jeopardy. Based on the plain language of CRS § 18-8-103(1), the unit of prosecution for resisting arrest is the number of discrete volitional acts of resisting arrest. Here, defendant’s resistance was a continuous course of action to avoid a single arrest that did not end until he was shot by Mitchell. Therefore, the two resisting arrest convictions should merge. Thus, the trial court plainly erred.
Defendant also contended that the trial court erred when it found that consecutive sentencing was required for his two first degree assault convictions. Here, defendant’s first degree assault convictions were not based on identical evidence, and the habitual criminal statute does not preempt the crime of violence statute. Accordingly, the trial court did not err.
The case was remanded to the trial court for it to disclose the specified parts of Mitchell’s personnel and internal investigation files and to give defendant the opportunity to make the requisite showing of prejudicial error. If the trial court concludes there is a reasonable probability that the trial result would have been different, it must grant defendant a new trial. If the trial court finds no such reasonable probability exists, it may leave in place its judgment of conviction, subject to defendant’s right to appeal. The trial court must also correct the mittimus as instructed. The remaining judgments of conviction and sentence were affirmed subject to the possibility of a new trial.
Criminal Law, Resisting Arrest, Evidence, Personnel Files, Habitual Criminal, Expert, Prior Escape Conviction, Unit of Prosecution, Merger, Constitutional Law, Double Jeopardy, Sentencing